Justice and Security (Northern Ireland) Bill

I gathered the noble Baroness was reading from a document pre-dating the Government’s changes. In other words, we have sought to meet some of those issues. I have a statement to put on the record; in shorthand, the Bill offers new powers for the future, existing powers for the past. It does not change the existing powers of the Northern Ireland Human Rights Commission; its new powers do not change the existing powers. I realise that, in looking at cases in two or three years’ time, there could well be documents that precede that. That is in some ways at the margin; it is not a question of changing the powers and the date being irrelevant. That is the point. The point of Clause 19 is to ensure that the Northern Ireland Human Rights Commission uses its powers to compel evidence and access places for the detention for investigation of matters arising from situations existing on or after 1 August 2007; they may of course have existed from some time before then. The clause prevents information recorded or produced before this date from being compelled, because that is not part of the existing powers. We obviously do not accept that the date restriction should be removed and the commission able to use its new powers to investigate and compel information from the past. The investigations should be forward looking. There is no question that the commission will make a positive contribution to the present and future development of human rights and practice in Northern Ireland as it becomes more of a civic society, particularly in view of the changes that will hopefully take place in a few days time. There are of course other bodies thought to be better placed and specifically mandated to investigate historic issues. It is not as though anyone has completely closed the book on the past; that would not be our intention. There is an argument that the commission should be able to compel information from the past when it relates to situations that arise after August this year. There will obviously be cases when information from the past is relevant to ongoing matters. Clearly, that has to be so and any reasonable person would accept that, because human rights issues are not a snapshot; they cover a period of time. However, deciding what information is relevant is not at all straightforward in terms of getting that into statute. It could be argued that records stretching back over 30 years could be used as background material for current events. In other circumstances, one document from July this year could be thought relevant to an investigation. We have given a great deal of thought to whether there is a way to define which documents from the past are clearly relevant to current events and therefore could be compelled by the commission. But we have concluded that a definition would be very difficult and probably ineffective. We do not believe that we could cover all the different circumstances that might arise and we would risk diluting what we want to be a forward-looking approach by the commission. We have considered very carefully, as proposed by Amendment No. 34, whether courts could be given the responsibility to determine whether a document is relevant. But we are concerned that that could lead to the courts becoming involved in almost every investigation that the commission conducts and that is not advisable. I emphasise that Clause 19 applies only to the new investigatory powers that Parliament is granting to the commission in the Bill. That is the whole point of the exercise. The new powers and the timings relevant in Clause 19 go together. Therefore, the best way to deal with the issue is for the commission to use its existing powers when it wishes to investigate the past or consider documents from the past, just as it has been able to do for the past eight years. In those circumstances, it will be able to use the Freedom of Information Act 2000 to request information. The noble Lord, Lord Lester, shakes his head as though the Freedom of Information Act has no significance and is no good. When the commission wants to investigate current and ongoing events and rely on information produced from August 2007 onwards, it will be able to use its new powers. That is what this Bill is about. We think that that is the right balance. Existing powers will enable it to look at the past, as it has been able to do, and new powers in the Bill will enable it to look to the future. For information that falls between the two there is a perfectly good Act of Parliament, which many people make use of daily, to cover the period in between. Naturally, we will look at the points raised, particularly the crossover points, but the purpose of the Bill is to give new powers to the commission. The start date is relevant for using those new powers. It would be wholly counter-productive not to have a date and to make it retrospective. That would not create a forward-looking commission.